H-1B Visa Challenges: Approval Rates Are Down and Major Changes Lie Ahead

H-1B visa petitions have been receiving increased denials from US Citizenship & Immigration Services (USCIS) following President Donald Trump’s Buy American and Hire American Executive Order of 2017.

According to the National Foundation for American Policy,  USCIS denied 33 percent of initial H-1B petitions in the first two fiscal quarters of 2019, compared to a 6 percent denial rate in 2015. Similarly, denials of H1-B visa renewals have risen from 3 percent in 2015 to 14 percent in 2019.

Why Are More Visas Being Denied?

The reason for the increasing denials frequently seems to rest on what USCIS considers to be a “specialty occupation,” normally construed in the past as requiring a bachelor’s degree or experiential or foreign equivalent. Experience must be related to the position in question and increase in responsibility and complexity to be taken into consideration by the USCIS. Reputable educational equivalency services can review proofs of foreign formal education or on-the-job experience and provide an opinion as to its formal US education equivalent for submission to the USCIS. Usually, a 3-1 ratio is applied: three years of on-the-job experience is equal to one year of US college.

The candidate must possess the required credentials to be qualified for the specialty occupation, and the position’s job description — not just the job title — must point to the fact that a bachelor’s degree or equivalent is required. USCIS seems to view a number of IT-related positions as not requiring a bachelor’s degree and hence not appropriate for an H-1B visa.

A good rule of thumb to get started in determining whether a position qualifies as a specialty occupation requiring a bachelor’s degree or equivalent is to look at the educational background required for the position in the Occupational Outlook Handbook  of the Bureau of Labor Statistics. Another resource is O*NET OnLine, sponsored by the US Department of Labor (DOL) Employment and Training Administration. That website actually lists the education normally required and is also helpful in providing an employer with an idea of the median wage for the position in question in the state where the employer is located.

Another reason for the increased denials is that the USCIS finds the wage level, of which there are four, too low for the position in question. The wage level must be correctly assigned when completing Form ETA-9035E, an electronic labor condition application filed with the DOL and, once certified, forming part of the H-1B visa petition.

Denial rates appear to be especially high for consulting and business-services firms, now averaging more than 30 percent. One reason for this is the perceived lack of employer-employee relationship when an H-1B candidate would be working remotely, away from the employer’s location and lacking close supervision. Another reason for such denials is the employer’s failure to establish ongoing, specific work in a specialty occupation for the entire duration of employment requested. Assignments cannot be speculative or capable of disappearing if the prospective employer is not selected for a project on which it wants the H-1B visa holder to work.

Despite all of this, carefully prepared H-1B petitions and extensions are certainly approvable, but only if they thoroughly address these areas of concern.

For more expert HR insights, check out the latest issue of Recruiter.com Magazine:

Major Changes to Watch For

On a positive note, the USCIS is adding another layer to the application process come spring 2020 that, in some ways, will benefit the employer. USCIS has published a final rule requiring petitioners seeking to file H-1B cap-subject* petitions (meaning subject to the lottery) to first electronically register with USCIS during a designated registration period. In some ways, this new preregistration is salutary: In preregistering, the employer need not prepare a full-blown petition only to find it was not selected through the H-1B lottery. With the payment of a $10 filing fee through the www.pay.gov  portal, the employer can apply to enter the H-1B lottery, and if selected, the employer then files the H-1B visa petition.

USCIS has advised that it will monitor the new registration system for potential fraud and abuse to determine whether employers are submitting many registrations but only filing petitions based on selected registrations at a significantly lower rate, which could reflect gaming the system to improve the odds of being selected. USCIS will require all registrants to attest that they intend to file an H-1B petition.

Finally, the 2020 H-1B lottery will reverse the order of selecting H-1B petitioners by first considering cases filed on behalf of applicants holding advanced degrees from US institutions. The total number of specialty occupation cap-subject H-1B visas is 85,000, with 65,000 going to holders of bachelor’s degrees or higher and 20,000 going to advanced degree holders from a US institution of higher education. According to USCIS, this reverse selection order will result in an estimated increase of up to 16 percent (or 5,430 workers) in the number of selected petitions for H-1B beneficiaries with master’s degrees or higher from US institutions of higher education. However, bachelor’s degree holders and those holding graduate degrees from foreign academic institutions will have less chance of success in this new cap-subject H-1B lottery.

* Some H-1B petitions are exempt from the H-1B lottery, known as being “cap-exempt,” if they are filed by institutions of higher education or federal research organizations like the National Institutes of Health, or if the H-1B visa holder is changing employers.

A version of this article originally appeared on the Poyner Spruill blog.

Jennifer Parser is an attorney at Poyner Spruill.

This article is for informational purposes only and does not constitute legal advice.